Shelton v. State

• Decision Date: 18 June 1979
• Docket Number: No. 3-1278A323,3-1278A323
• Citation: 390 N.E.2d 1048,181 Ind.App. 50
• Parties: Eugene SHELTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1048

390 N.E.2d 1048

181 Ind.App. 50

Eugene SHELTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-1278A323.

Court of Appeals of Indiana, Third District.

June 18, 1979.

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

On October 5, 1977, an information was filed in the Marshall County Circuit Court charging appellant Eugene Shelton with three counts of forgery. Shelton appeared without counsel for arraignment on October 7. He was advised that he had the right to assistance of counsel and that counsel would be appointed at public expense if he was without funds to retain counsel. When asked if he wished to be represented by an attorney, Shelton responded negatively. After advising Shelton of the charges against him, the punishments therefor, and the constitutional rights relinquished by pleading guilty, the trial court accepted Shelton's guilty plea. At a later date Shelton received three (3) concurrent sentences: two indeterminate terms of imprisonment of 2-14 years on Counts I and II, and one term of 5 years on Count III. Thereafter, Shelton filed a petition for post-conviction relief alleging that the guilty plea was invalid since he did not knowingly, intelligently or voluntarily waive his right to the assistance of counsel and further alleging that he was erroneously sentenced on Counts I and II. After a hearing, relief was denied and this appeal followed.

Under the 6th Amendment of the United States Constitution an accused has the right to assistance of counsel at any stage of the prosecution where counsel's absence might derogate his right to a fair trial. U. S. v. Wade (1967), 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149; Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634. An accused also has the right to waive the assistance of counsel and proceed Pro se. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; Russell v. State (1978) Ind., 383 N.E.2d 309. However, if the accused chooses to represent himself, the waiver of the right to the assistance of counsel must be shown to have been voluntarily, knowingly and intelligently made. Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. It is the duty of the trial court to establish a record which shows that an accused who has elected to waive counsel and proceed Pro se has done so voluntarily, knowingly and intelligently. Johnson v. Zerbst, supra; Carnley v. Cochran (1962), 369, U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; Grubbs v. State (1970), 255 Ind. 411, 265 N.E.2d 40; Wallace v. State (1977), Ind.App., 361 N.E.2d 159.

In Grubbs the court stated:

" . . . (A) trial court must approach those stages of a proceeding at which fundamental constitutional rights attach with great concern and caution and with an appreciation for the need to make a clear record of what takes place. This Court cannot infer a voluntary and intelligent waiver of such a right from a silent record. Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. In stating the responsibility of the trial judge in these circumstances the Supreme Court of the United States said:

'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused whose life or liberty is at stake is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.' 304 U.S. at 465, 58 S.Ct. at 1023."

255 Ind. at 418, 265 N.E.2d at 44.

In Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, which involved an alleged waiver of the right to counsel at arraignment, the U.S. Supreme Court noted that:

"To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

"This case graphically illustrates that a mere routine inquiry the asking of several standard questions followed by the signing of a standard written waiver of counsel may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel."

Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 held that:

"Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' Adams v. U. S. ex rel. McCann, 317 U.S. (269), at 279, 63 S.Ct. (236), at 242 (87 L.Ed. 268).

In view of this language, Indiana has rejected its former position that an accused who had been advised of his right to counsel and deliberately chose to proceed Pro se at trial would be presumed to have considered the risks and consequences of self-representation. Russell v. State (1978), Ind., 383 N.E.2d 309; German v. State (1978), Ind., 373 N.E.2d 880; Wallace v. State (1977), Ind.App., 361 N.E.2d 159.

In Wallace, supra, the court held that a defendant must be made aware of the consequences of the choice he is making.

"Waiver is usually defined as the intentional relinquishment of a known right or privilege. Johnson v. Zerbst, supra. The definition has two parts. The second part is satisfied, for it is true that Wallace knew of his right to counsel. However, a waiver is only effective if it is intelligently, knowingly and understandingly given. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Merely making the defendant aware of his constitutional right to counsel is insufficient. The record must demonstrate that he is fully aware of the nature, extent, and importance of the right he has waived and the possible consequences thereof...